Hyderabad State Bank vs Ranga(sic)h Rathi

Kumarayya, J.—The facts out of which this appeal arises are few and simple. The defendant Ranganath Rathi opened a current account with the plaintiff, the Hyderabad State Bank on 22-1-1946. It is common ground that the defendant did not enjoy under the rules any overdraft concession. He drew a cheque Ex.-20 dated 4-2-1947 bearing No. 108779 for a sum of Rs. 5,500/- in favour of one Mansani Rajeeru. He had at the time only a sum of Rs. 307-11-8 to his credit in the Bank account.

The drawee presented the cheque for payment on 5-2-1947 personally at the Bank. It was returned with the remark "refer to the drawer". It was again presented through Raghunathmal Bank Ltd., on 10-2-1947 and was returned for a second time with the same remark. Obviously enough, neither the defendant had any right nor had the plaintiffs any intention of granting over-draft. The cheque thus dishonoured ought to have been returned to the Raghunathmal Bank itself on the same day or the next day.

But the plaintiff''s case is that by mistake of their clerk it was sent to the defendant, a fact which has been categorically denied by the defendant. This mistake is said to have been discovered when on receipt of statement of accounts, the Raghunathmal Bank Ltd., complained of a debit entry of Rs. 5,500/- and thereafter in response to the plaintiff''s letter asked for the name of the officer who had signed in the delivery book. Though there is no document to establish, it is said that the plaintiffs tried to get back the dishonoured cheque from the defendant and that eventually they succeeded therein.

The same dishonoured cheque was sent back to the Raghunathmal Bank Ltd., but the bank refused to accept the same as, according to the rules, in case of dishonour it ought to have been returned the very day or the next day at the latest to the collecting Bank and as that was not done they had already made payment to M. Rajeeru on the assumption that it has been honoured. The plaintiff bank was now placed in an extricable position. They could not but acknowledged payment of the cheque.

They therefore credited the amount to the Raghunathmal Bank but, at the same time, debited the same in defendant''s account. This was done on 4-6-1947. The plaintiff bank then tried to obtain a letter from the defendant and were successful in obtaining the same on 1-10-1947 which is to the effect that the defendant promised to the secretary that he will settle the over-draft account by the end of October, 1947.

It will be noticed that the facts relating to the misdirection of the dishonoured cheque, its subsequent recovery from the defendant and the payment of cheque amount on 4-6-1947 to the collecting bank do not find a place in the plaint but were introduced for the first time on 16-3-1950 in the statement filed with the permission of the court. The story in the plaint filed as early as in April, 1949 is somewhat different.

It was stated therein that though the amount to the credit of defendant was only Rs. 307-11-8, the Bank in order to maintain his credit honoured the cheque for Rs. 5,500/- on 4-2-1950 itself and then informed the defendant accordingly and that the defendant thereafter through his letter dated 1-10-1947 agreed to pay off the overdraft by the end of October, 1947 and to offer certain shares by way of security meanwhile for the same.

The defendant in his written statement admitted the cheque drawn on plaintiff Bank in favour of Rajeeru but his contention was that it was a post dated cheque deliberately drawn as such having regard to the nature of the transaction between himself and Rajeeru which might warrant stoppage of payment before the due date. That transaction having fallen through he did not wish that the cheque should be cashed. He did not therefore supply necessary funds and was sure that the cheque if presented on due date will be dishonoured as he enjoyed no overdraft facility.

He thought it unnecessary under these circumstances to advise the bank to stop the payment. Later on however he was made to believe by the Secretary of the Bank that in spite of lack of adequate funds to his credit, the Bank did honour the cheque on 4-2-1947 lest the fair name and credit of the defendant may be tarnished. He took the secretary at his word and became honour bound to undertake the liability.

He wrote the letter on 1-10-1947. But subsequently he came to know of the real state of affairs that the bank had played him false as the cheque was not in fact honoured On 4-2-1947 but only on 4-6-1947. The defendant contends that the letter dated 1-10-1947 is without consideration and cannot be availed of being a creature of plaintiff''s fraud. He categorically denied in his additional written statement filed in reply to the statement of the plaintiff that the dishonoured cheque was ever sent to him or he had returned the same to the plaintiff bank.

Seven witnesses were examined on behalf of the plaintiff and two on behalf of the defendant. The learned First Judge, City Ci(sic) Court, on the basis of the evidence found (i) that the dishonoured cheque was not sent to the defendant at all; (ii) that the letter dated 1-1947 was given by the defendant under a misapprehension that the amount of the cheque v(sic) paid on 4-2-1947 with the avowed object of p(sic) serving his prestige and credit and not under any obligation of the plaintiff to pay off amount to the Raghunathmal Bank Ltd., as result of its laches; (iii) that the letter is wi(sic) out consideration within the meaning of S. 2(sic) of the Contract Act and is not an enforcea(sic) agreement; and (iv) that as the payment m(sic) by the plaintiffs was not voluntary nor with view to benefit the defendant, the plaintiffs not entitled to recover the amount from the defendant in law. With these findings he dismissed the suit with costs.

Before we consider the appeal on me(sic)we would like to dispose of a plea, though be(sic)ed, taken as a preliminary objection. This r(sic)tes to the question of limitation. The decree passed by the lower court on 2-3-1953. The peal ought to be filed within 90 days from the date after excluding the time spent in get copies. The last day of limitation fell in summer vacation. Therefore it was filed 15-6-1953, the day on which actually the court opened after the vacation.

It was argued that it should have been on the last day of limitation as the High Court was in fact kept open for this purpose. No (sic)fication or circular has been produced to sup(sic) this contention. It is alleged that in poin(sic) fact the appeals during that period were b(sic) received by this court. Apart from the fact its veracity is disputed, such a contention i(sic) no avail unless there is authority for such of receiving. Section 4 of the Limitation reads thus:

Where the period of limitation presc(sic) for any suit, appeal or application expires a day when the court is closed the suit, a(sic) or application may be instituted, preferred made on the day that that court reopens.

The question therefore is whether or no account of summer vacation, the court sha(sic) deemed to be closed within the meaning of (sic)of the Limitation Act. That the summer (sic)tion used to be notified in the Jarida(sic) year is an admitted fact. For the year in (sic)tion, the notification No. 10896 dated 26-(sic) published in the Jarida reads thus:

It is notified for the information of all concerned that the Administration Bench of High Court of Judicature at Hyderabad ha(sic)cided that the summer vacation for the Court during the year 1953 will be from day, 13th April to Friday the 12th June, (both days inclusive).

The notification is express and explicit an(sic)mits of no construction that the High Court kept open for the purpose of receiving the appeals. It is only where the notification in clear terms that the court will be op(sic) certain days for the reception of appeals or papers, the court can be treated as open on days for that purpose but not otherwise that is not the case here, having regard (sic) ear wording of the notification, the plea that the appeal ought to have been filed during the (sic)cation on the last day of the limitation is un(sic)nable.

(After discussing the evidence, oral and documentary, adduced in the case, their Lord-Ships held that the defendant was not liable for e delay caused in returning the dishonoured (sic)eque by the plaintiff to the collecting bank (sic)d that the letter was sent by the defendant (sic)der a mistaken impression that the Bank had (sic)d the amount to save his credit and not to charge their own liability occasioned by their (sic)hes.)

The document obtained under such circumstances is hit by S. 19 of the Contract Act. (sic)at apart, as there is no consideration for the (sic)mise embodied in the document within the (sic)aning of S. 2 (d) of the Contract Act it is an (sic)eement unenforceable in law. S. 2 (d) reads thus:

When at the desire of the promisor, the (sic)misee or any other person has done or ab(sic)ned from doing or does or abstains from (sic)lg, or promises to do or to abstain from doing (sic)ething, such act or abstinence or promise is (sic)ed a consideration for the promise." (sic)dently, the alleged payment made by the plaintiff bank was not at the desire of the defendant within the meaning of S. 2 (d). As has (sic) already stated, the plaintiff bank had re(sic)d to make payment but they were forced to the same as a result of their own mistake (sic)ot sending the cheque to the collecting bank (sic)ime.

Obviously the obligation to pay flowed from mistake or laches of the bank and was in(sic)ndent of or in no way connected with the (sic)ation of the defendant to make payment to drawee. At any rate, it did not arise from request of the defendant to make payment was the payment in fact made at the desire the defendant. If a payment is made in pur(sic)ce of some subsisting undertaking between two banks to which the defendant is not a nor interested therein, it is not a legal (sic)deration so far as the defendant is con(sic)d.

If any authority is required for this propo(sic) it is found in AIR 1948 150 (Privy Council) (A), where a promis(sic) note for the amount advanced for the Iiti(sic) was held to be without consideration on round that the money was advanced under undertaking given by the plaintiff''s father not at the desire of the defendant. It is that agreements without consideration are in law unless they are covered by the pro(sic)s of S. 25. It is argued that the present falls under S. 25 (2) of the Contract Act reads as below: (sic)n agreement made without consideration is unless:

(1)..................................

(2) It is a promise to compensate, wholly or (sic)rt, a person who has already voluntarily something for the promisor or something the promisor was legally compellable to unless

....

the question therefore is, was there a pro(sic)y the defendant to compensate the plaintiff something which he had voluntarily done the defendant and which the defendant was compellable to do. The expression ''voluntarily... done'' when applied to actions denotes something performed or done of one''s own will, impulse and choice not constrained, prompted or suggested by another.

That is the meaning attached to the word ''voluntary'' according to Murray''s New English Dictionary referred to in AIR 1935 561 (Lahore) . The letter of the defendant does no doubt contain a promise which implies an admission that the plaintiff had paid the amount for him but this admission, as already stated, was obtained by misrepresentation and hence has no legal significance. At any rate, such implied admission being gratuitous made in ignorance of the real facts may be withdrawn, in law, in the absence of any legal bar like estoppel etc. Similar was the view taken in Mt. Izhar Fatma Bibi and Others Vs. Mt. Ansar Fatma Bibi and Others , following the dictum of the Privy Council in Mohammed Imam Ali Khan v. Hussain Khan, ILR 26 Cal 81 (D).

It is evident that the payment made by the plaintiff was neither voluntary nor for the defendant but was the inevitable consequence of the plaintiff''s undertaking with the collecting bank. Indubitably, the defendant could not be compelled to make such payment arising from the mistake of the bank. S. 2 (d) of the Contract Act therefore does not apply.

It is next urged that the plaintiff is entitled to the relief claimed even under the provisions of S. 70 of the Contract Act which reads thus:

When a person lawfully does anything for another person, or delivers anything to him, not intending to do so gratuitously, and such other person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of, or to restore, the thing so done or delivered.

For the application of this section, four conditions must be satisfied: (i) the thing must be done lawfully; (ii) it must be done by a person not intending to act gratuitously; (iii) it must be done for another person; and (iv) the person for whom it is done must enjoy the benefit of it. The term ''lawfully'' as observed by the Calcutta High Court in Panchakore Ghose v. Haridas, 21 Cal WN 394: (AIR 1916 Cal 497) (E), indicates that the man making the payment must have lawful interest in making it.

Whether what is done by a person has been done for another within the meaning of S. 70 always is a question of fact. The test is, whether the person who is acting holds such a position in relation to the other as to raise expressly or by reasonable implication an inference that by the act done for the other person he could be entitled to look for consideration for it to the person for whom it was done.

He must be not only interested in doing the thing but must act in the place of the defendant and not merely on his own account. As observed in Avudayappa Pillai Vs. T.S. Thillai Thandavaraya Pillai, , the position should be this: He must say, ''I acted in his place, therefore I am entitled to compensation, because he has not proved that I intended to act gratuitously.'' That is really what it meant by acting for another.

In the instant case, in making payment to the collecting bank it cannot be said that the plaintiff had acted for the defendant. He in fact acted in his own account in order to discharge his liability occasioned by his mistake.

Further it is not only necessary that the act should be done for another but also the person for whom the act is done must enjoy the benefit of it. The benefit however must not be thrust upon him. He must be in a position to exercise the position whether or not to avail himself of the benefit.

It is no doubt true that on account of the payment made, the defendant may be said to have got in effect some benefit but evidently, it is a benefit, having regard to the circumstances, thrust upon him. The bank was compelled to pay even though it had never intended to pay the same under the authority of the defendant express or implied. The defendant whose credit in the bank was low knew for certain that the cheque will not be honoured.

As a matter of fact he did not wish that the cheque should be honoured. That is the reason why according to him he did not make any deposit nor advise stoppage of payment of the postdated cheque. But, curiously enough, on account of the obligation of the plaintiff towards the collecting bank, the benefit was thrust upon him. Such a benefit cannot be reclaimed by the plaintiff under the provisions of S. 70 of the Contract Act and the defendant is not bound to compensate under the provisions of the same section.

The court below has therefore held that plaintiff''s suit should fail. We see no reason to differ from the view taken by the Court below. Not only the plaintiffs did not come to the court with a full and true account of the story in their plaint but also failed to establish the liability of the defendant even according to the statement filed on 16-3-1950. We therefore confirm the judgment and decree of the Court below and dismiss his appeal with costs.